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June 29, 2006

A Blakely perspective on Clark

The Supreme Court's discussion of due process, insanity and mens rea today in Clark is another example of the challenging intersection of criminal law and psychology.  The majority opinion, which rejects various due process claims, is narrowly written so Clark will likely not be a due process watershed ruling.  Indeed, what I find most interesting about Clark is how the votes and opinions shake out as compared to cases in the Apprendi-Blakely line.

Intriguingly, Justice Souter authored Clark and he brought along Justices Scalia and Thomas from the Blakely five (as well the newbie Justices) in an opinion that is functional, relatively narrow, and emphasizes the importance of the "State chosen standard[s]."   Meanwhile, Justice Kennedy authors a strong dissent, joined by Justices Stevens and Ginsburg, which accuses the majority of "fail[ing] to appreciate the implications for Winship."  Winship, of course, is the key due process ruling clarifying the import and reach of the requirement that prosecutors prove elements of an offense beyond a reasonable doubt.

I am not sure what all this might means for the big Blakely cases on the horizon (perhaps nothing), but it confirms my view that, outside the death penalty context, the traditional liberal/conservative labels and expectations are hard to square with the actual outcomes in a range of large and small criminal justice cases the Court decides.

June 29, 2006 at 12:54 PM | Permalink


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Doug: Winship should have determined the outcome in this case. The majority has framed the question incorrectly, and in the process papered over a major due process problem. If a necessary element has not been or cannot be proven BaRD, what possible justification could there be, under federalism or otherwise, for denying a defendant the right to prove or argue that?

Prof. Morse of Penn Law is right: this isn't a defense or an excuse. This is about the definition of the crime. Without the required mental state, the charged crime *has not even been committed.* With this ruling, then, states can convict individuals of crimes that were not committed at all. Due Process? I think so.

Also, I agreed with Dan over at Concurring Op.s re. how wrong you were to go off about Souter's Death Is Different-type statement about wrongful convictions. Grits for Breakfast agreed with you, though.

Posted by: Eh Nonymous | Jun 30, 2006 3:22:27 PM

nice blog

Posted by: lhen | Jul 2, 2006 3:52:16 AM

Ruth Bader Ginsburg entered a lawful world where the best jobs were off-limits to women and emerged as a Supreme Court Justice. Born in Brooklyn, Justice Ginsburg received her B.A. from Cornell and arrived at Columbia in 1958 after accomplishing two years at Harvard Law School.

Posted by: Sly | Jul 19, 2006 3:33:08 PM

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